Three Paths for the Supreme Court in Gay Marriage Cases

Edith Windsor, one of the plaintiffs challenging the constitutionality of the Defense of Marriage Act, is interviewed at the offices of the New York Civil Liberties Union, in New York.

It’s been a year full of news on gay marriage, including President Barack Obama’s statement that he personally favors allowing it and several state votes in November supporting it.

Now one of the biggest developments may be imminent. Supreme Court justices are discussing gay-marriage cases at their conference today and may announce as soon as this afternoon whether they will hear the cases.

The first dispute involves the 1996 federal Defense of Marriage Act, which denies federal recognition to same-sex marriages in states that have legalized the practice. Federal appeals courts in Massachusetts (May 2012) and New York (October 2012) struck down the federal law, saying it impermissibly discriminated against gays and lesbians.

Second, the Supreme Court has been asked to review California’s Proposition 8, passed by voters in 2008, which bars gay marriage in the state. The Ninth U.S. Circuit Court of Appeals struck down Proposition 8 in February, but on narrower grounds than gay-marriage proponents had hoped. The appeals court ruled 2-1 that California had improperly granted same-sex marriage rights and then taken them away.

What happens next? Here are three possible scenarios for the Supreme Court’s action Friday or Monday.

1) The court declines to hear any of the gay-marriage cases. Perhaps the justices might feel that the issue is moving too quickly for them to weigh in now. Also there isn’t a split among appeals courts that needs to be resolved. If the justices go this route, the appellate court rulings favoring gay marriage would stand, but there would be no national precedent to guide other parts of the country.

2) The court decides to hear a Defense of Marriage Act case but takes no action on Prop 8. The legal issues in the two disputes aren’t entirely the same. In particular, the DOMA issue has a states’ rights component: Those who want to strike down the federal law say Washington shouldn’t be allowed to interfere with a state’s decision to recognize a certain kind of marriage. Supporters of DOMA, which was passed by bipartisan majorities and signed by President Bill Clinton, say the federal government has a legitimate interest in upholding the traditional definition of marriage.

3) The court takes up both DOMA and Prop 8. This would pave the way for a broader landmark ruling by June 2013 on gay marriage. Even in this scenario, though, the justices could avoid taking a stand on whether gays have a constitutional right to marry, perhaps by endorsing the Ninth Circuit’s more limited reasoning.

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